Daun v. Truax
Decision Date | 07 March 1961 |
Court | California Court of Appeals Court of Appeals |
Parties | Jane DAUN, a minor, by and through her Guardian ad litem, John Daun, and John Daun, individually, Plaintiffs and Appellants, v. Roy TRUAX, Heieck & Moran, a corp., W. R. Stone, Inc., a corp., Defendants and Respondents. Civ. 19267. |
Whitney & Hanson, Stanley D. Whitney, Alameda, for appellants.
Woodrow W. Kitchel, Oakland, D. W. Brobst, Oakland, of counsel, for respondents.
This is an appeal by the plaintiffs from a judgment for the defendants entered pursuant to a verdict in a personal injury action brought to recover damages sustained by the minor plaintiff, a 5-year-old child, and for expenses advanced by her father.
Defendant Truax was driving a station wagon easterly on San Antonio Avenue approaching Sherman Street in Alameda. The 5-year-old plaintiff was standing on the northeast corner of Sherman and San Antonio. A witness testified that as the young-ster started to cross San Antonio, a car was about to enter the intersection from the east while the defendant was approaching the intersection from the west. The car coming from the east was so near the child that the witness expected an accident and ducked her head. When she looked up, the car from the east which she had feared would strike the child, was continuing west on San Antonio beyond the intersection, but beneath defendant's east-bound car, which had stopped, she saw the plaintiff. Defendant Truax testified that he was traveling between 20 and 25 miles per hour as he approached the intersection, that although he never saw the plaintiff, he was momentarily conscious of an object coming rapidly toward his car from the left. The jury found for the defendants and judgment was entered accordingly.
Appellants' principal ground of appeal is that the trial court gave conflicting instructions which misled the jury. The court gave the standard instructions on negligence and proximate cause. Also given were the three following instructions, to which appellants take exception:
Defendants' Instruction No. 17: (former Veh.Code, § 562. 1 )
'Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway.
'The provisions of this section shall not relieve the driver of a vehicle from the duty to exercise due care for the safety of any pedestrian upon the roadway.'
Defendants' Instruction No. 21: (BAJI 201-C.)
Defendants' Instruction No. 10: (BAJI 103.1.)
It is appellants' contention that these instructions advised the jury that a little girl, 5 years of age, was required to exercise the same amount of care as an adult and that her conduct was to be judged by the same standard of care as that of an adult. However, the last instruction given in the series on negligence and statutory duty of care reads as follows:
Plaintiffs' Instruction No. 5(a): (BAJI 147.)
Appellants' counsel concedes that this instruction tendered by him correctly states the standard of care which applies to a child. It is his contention that it is contradicted by the quoted instructions which preceded it. He asserts that the instructions relating to pedestrians and to contributory negligence should have been modified to conform to the latter instruction concerning the standard of care of a child. Respondents, on the other hand, contend there was no error since the court instructed the jury, 'You are to consider all of these instructions as a whole and regard each in the light of all the others.' They argue that the jurors were clearly instructed that when considering the three instructions to which appellants take exception, they were to apply the standard of care applicable to a child. Respondents' position is sustained by Hartshorne v. Avery, 130 Cal.App.2d 517, 279 P.2d 123, which presented the same question. The court said 130 Cal.App.2d at pages 520, 521, 279 P.2d at page 126:
'The jury in the instant case were instructed on both issues, i. e., negligence per se and minority, and it must be assumed that they gave due consideration to both in bringing in their verdict.
'As stated by this court in Horrell v. Santa Fe Tank & Tower Co., 117 Cal.App.2d 114, 120, 254 P.2d 893, 896:
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Daun v. Truax
...for the District Court of Appeal by Justice pro tempore Stone and concurred in by Justices Draper and Shoemaker (reported in (Cal.App.) 11 Cal.Rptr. 652) adequately discusses and correctly resolves the questions presented on this appeal. For the reasons therein stated I would affirm the McC......